A Radical New Ploy to Destroy Roe v. Wade—Which Just Might Work

2011 has been a banner year for abortion opponents. Thus far, 87 state laws restricting abortion have been enacted, the most in any year since Roe v. Wade and more than double the previous high. But one rogue wing of the pro-life movement sees no reason to celebrate: the budding “personhood movement,” which wants to turn abortion into homicide by methodically amending state constitutions to define conception as the beginning of a person’s life.

This November, Mississippi votes on the personhood issue by popular referendum. The results will gauge whether the movement is a powerful new front or a fringe strategy destined to fizzle. Regardless of how Mississippi votes, however, the personhood movement is worth tracking for two reasons. First, it’s sparking a debate among pro-lifers about the efficacy of the movement’s traditional, incremental approach. Second, by challenging Roe’s premise outright, the personhood movement is seeking out a legal conflict that could well make its way to the Supreme Court.

IN THE 1970s and 1980s Republican Senator Jesse Helms and several other die-hard pro-lifers made a regular habit of proposing federal personhood amendments. None of them reached the floor of Congress for a vote. In 1988, Ronald Reagan issued a presidential proclamation that declared the personhood of each American “from the moment of conception until natural death,” but his statement contained no legal implications. What was already a marginal movement in the ’70s and ’80s, meanwhile, disappeared almost entirely in the ’90s. After the Supreme Court decided the 1992 landmark abortion case Planned Parenthood v. Casey—which upheld the essence of Roe but also gave states the right to discourage women from having abortions at any stage of fetal development—the pro-life movement focused on restricting abortion, rather than banning it outright. Post-Casey, state abortion restrictions have done their job: According to the Guttmacher Institute, the abortion rate has dropped 29 percent from 1990 to 2005, after a decade of stability in the ’80s (a 2007 study by the Heritage Foundation found that state-level restrictions were a leading factor in the drop during the ’90s).

Five years ago, however, a small group of Michigan activists, unsatisfied with such small-ball strategies, revived the personhood movement on the state level. Michigan’s personhood amendment sparked an unlikely, intra-pro-lifer debate: Facing heavy opposition from Michigan Right to Life, the group that originally sponsored the amendment chose not to file the signatures it had gathered. Indeed, it has since become clear that not all pro-life groups are on board with the personhood movement. Phyllis Schlafly’s Eagle Forum called personhood a “gimmick” and a “waste of money.” James Bopp, a renowned pro-life attorney, has argued that bringing such challenges before pro-lifers achieved a majority on the Supreme Court could simply give the current court the power to bolster the pro-choice language of Roe.

The Michigan effort was nevertheless successful in setting off a chain reaction of personhood voter initiatives. In 2008 and 2010, personhood amendments managed to get on the ballot in Colorado, but both failed by approximately 70 percent to 30 percent. At least ten more such amendments have failed elsewhere in the last five years, either because they couldn’t win a popular vote in state legislatures, didn’t obtain enough signatures to qualify for a popular referendum, or were ruled unconstitutional by state courts. But whereas traditional pro-life groups have played major roles in quashing personhood amendments in other states, none have publicly criticized the current effort in Mississippi, which is slated to become the second state to vote on the issue this fall. (The ACLU and Planned Parenthood have mounted a legal challenge against the vote that is currently being reviewed by the state supreme court. If it upholds the lower court’s decision, Mississippi votes on personhood; if it doesn’t, it’s off the ballot.)

Indeed, many establishment pro-life groups are moving over into the personhood camp. The president of Georgia Right to Life, Dan Becker, is also the author of a book called Personhood and the de facto leader of the national personhood movement; he told me that the fight for fetal personhood is “the last human rights battle of the twenty-first century.” Beverly McMillan, president of Pro-Life Mississippi, says the mainstream, incremental pro-life strategy of chipping away at state laws “has gotten us zilch.” The movement has garnered support from celebrities and politicians alike: Brett Favre’s wife, Deanna, and former Arkansas Governor Mike Huckabee are scheduled to appear at a Personhood Mississippi fundraiser this month, according to Personhood Mississippi campaign director Brad Prewitt. Republican Phil Bryant, the leading candidate in this year’s gubernatorial election, has also endorsed the amendment.

Barring an intervention from the state supreme court, in other words, Mississippi looks like fertile ground for the personhood movement to win its first victory. The state has only two abortion providers and some of the most stringent abortion restrictions in the country. Public opinion is so overwhelmingly pro-life that University of Mississippi political scientist John Bruce told me nobody bothers polling on abortion: “It would typically be a waste of money.” And unlike in Colorado, Mississippi’s pro-choice opposition troops are marginal to non-existent. Unless an anti-personhood lobby suddenly emerges, Bruce predicts Mississippi will pass the amendment.

IF THE PERSONHOOD MOVEMENT wins in November, it will bring the Mississippi state constitution into direct conflict with Roe. And federal precedent, of course, trumps state law—which means that any federal court would, at least for the moment, continue to allow abortion in Mississippi. So why are activists so enthusiastic about this amendment?

First, the personhood movement is part of a broader strategy of expanding fetal rights to address aspects of the pro-life agenda that fall outside the scope of abortion. Recently, several states, including Mississippi, have used their fetal homicide laws to prosecute pregnant women for allegedly causing their own miscarriages. An Alabama woman was sentenced to ten years in prison for suspected drug use prior to her miscarriage. Moreover, a state personhood amendment could effectively ban embryonic stem cell research and, according to Elizabeth Nash of the Guttmacher Institute, forms of hormonal contraception like intrauterine devices and the morning after-pill. It could also preclude any feasible means of conducting in vitro fertilization, since defective embryos couldn’t be discarded.

Second, even if a personhood amendment would not immediately outlaw abortion, it could set in motion a series of appeals designed to ascend to the Supreme Court. According to Cilla Smith, a senior research scholar at Yale Law School, a group like Planned Parenthood or the ACLU would be likely to immediately and successfully challenge the law; personhood supporters would appeal; the pattern would likely repeat, all the way up to the Supreme Court. The hope of personhood supporters, in Smith’s assessment, is that, by the time the case reaches the Supreme Court, its composition will have shifted in their favor. This strategy is a gamble, of course, but it’s one that personhood activists are apparently willing to take.

Third, even if they don’t succeed at this strategy, personhood activists still see such amendments as a means to wage a national campaign of ideas. Regardless of what happens in Mississippi, organizers in at least five states—including Alabama, Georgia, Florida, Montana, and Nevada—are already pushing for the inclusion of ballot initiatives on personhood in November 2012. As Personhood Mississippi’s Brad Prewitt stressed to me, “I don’t focus on the legal side of this. … This is the first shot in a larger battle.”

In an immediate sense, the larger battle Prewitt is talking about is one over the definition of personhood. But it’s also a battle over pro-life strategy. Despite the recent incremental successes of the pro-life movement, some activists will never be satisfied until abortion is banned outright. As Rebecca Kiessling, an activist who was conceived in rape and has campaigned across the country for personhood, told me, “You can’t compromise. You can’t make exceptions for rape.” This sort of ideological obstinacy figures to be both the movement’s greatest asset and weakest link, as activists on both sides of the debate awaken to the radical possibilities of personhood.